This
opinion is subject to editorial correction
before final publication.

Judge
EFFRON delivered the opinion of the Court.

At
a special court-martial composed of a military judge sitting alone,
Appellant
was convicted, pursuant to his pleas, of unauthorized absence, in
violation of
Article 86, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. §
886 (2000).He was sentenced to a
bad-conduct discharge, confinement for 90 days, and forfeiture of $695
of pay
per month for three months.The
convening authority approved the sentence as adjudged, and suspended
all
confinement in excess of 30 days pursuant to the pre-trial agreement.The Court of Criminal Appeals initially
affirmed the findings while modifying the sentence in an unpublished
opinion.The court subsequently vacated
that decision and issued a new opinion that affirmed the findings and
affirmed
the sentence as approved by the convening authority.United States v. Kahmann,
58 M.J. 667 (N-M. Ct. Crim.
App. 2003)(en banc).

On
Appellant’s petition, we granted review of the following issue:

WHETHER
THE MILITARY JUDGE COMMITTED PLAIN ERROR BY ADMITTING EVIDENCE OF A
PRIOR
SUMMARY COURT-MARTIAL CONVICTION DURING PRESENTENCING WHEN THERE WAS NO
SHOWING
THAT ACCUSED HAD AN OPPORTUNITY
TO SPEAK WITH COUNSEL BEFORE THE SUMMARY COURT-MARTIAL AND NO EVIDENCE
SHOWING
COMPLIANCE WITH THE REVIEW REQUIREMENTS UNDER ARTICLE 64, UCMJ.

For the reasons set
forth below, we hold that admission of the prior summary court-martial
conviction into evidence during the sentencing proceeding did not
constitute
plain error.

I.
BACKGROUND

A. RECORDS
OF NONJUDICIAL PUNISHMENT

AND
CONVICTIONS BY SUMMARY COURTS-MARTIAL

1. The statutory right to
object to nonjudicial punishment
proceedings and summary
courts-martial

General
and special courts-martial serve as
the primary venues for the trial of criminal offenses in the military
justice
system.See
Articles 18-19, UCMJ, 10 U.S.C. §§ 818-819 (2000).Military judges preside over these courts and
qualified counsel represent the parties, subject to narrowly drawn
exceptions
for certain special courts-martial.See Articles 18- 19, 26, 27 UCMJ, 10 U.S.C. §§
818-819,
826-827 (2000).Rule for
Courts-Martial 201(f)(1)-(2) [hereinafter
R.C.M.].The rules of evidence and
procedure in general and special courts-martial are in many respects
quite
similar to those applicable to criminal trials in federal civilian
courts.See, e.g.,
Article
36, UCMJ, 10 U.S.C. § 836 (2000); David A. Schlueter,
Military Criminal Justice § 1-7, at 37; § 15-18, at 694 (5th ed.
1999).

The
UCMJ also authorizes two expedited procedures for the disposition of
minor
offenses.First, commanding officers may
use nonjudicial procedures to impose
disciplinary
punishments upon their subordinates for minor infractions.Article 15, UCMJ, 10 U.S.C.
§ 815 (2000).Under Article 15,
service members may receive a variety of minor punishments, such as
forfeiture
of pay, reduction in rank, imposition of extra duties, restriction to
specified
limits, and correctional custody for not more than 30 days.Article 15 procedures are relatively
informal, and the service member is not entitled to representation by
qualified
counsel.SeeManual for
Courts-Martial, United States (2002 ed.), Part
V.A service member has the right to
demand trial by court-martial in lieu of nonjudicial
punishment proceedings, unless the member is attached to or embarked in
a
vessel.Article 15(a); seeUnited States v. Edwards,
46 M.J. 41 (C.A.A.F. 1997).

Second,
certain commanders may refer charges against enlisted personnel to a
summary
court-martial for expedited consideration of minor offenses.Article 20, UCMJ, 10
U.S.C.
820 (2000); R.C.M. 1301(b).A
summary court-martial consists of a single officer, who conducts a
simplified,
non-adversarial examination of the charges.The accused is not entitled to be represented by counsel.See R.C.M. 1301(e); Middendorf v. Henry, 425 U.S.
25 (1976).The limitations on the
sentencing power of a summary court-martial include a prohibition
against
adjudging a punitive discharge or confinement in excess of 30 days.Article 20; R.C.M. 1301(d).Prior to arraignment, an accused, including a
person assigned to or embarked in a vessel, may object to trial by
summary
court-martial.Article
20; R.C.M. 1303.Upon such
objection, an appropriate convening authority may refer the case to a
special
or general court-martial.

Subject
to the limited exceptions outlined above, theeffect of these provisions is that any service member facing a nonjudicial punishment proceeding or summary
court-martial
is entitled to object and insist that any further proceedings take
place under
formal judicial procedures.Through such
objections, a service member may ensure that any further proceedings
will take
place before a special or general court-martial where a military judge
will
preside over any further proceedings, the Rules for Courts-Martial and
Military
Rules of Evidence will apply, and the service member will be
represented by
qualified legal counsel.

The
point at which a service member must decide whether to object to an
informal
proceeding is an important stage in the military justice process.In recognition of the key role that counsel
can play in advising a service member at that point, our Court has
limited the
admissibility of such records when the accused has not had the
opportunity to
consult with counsel. See, e.g., United States v. Edwards,
46
M.J. 41, 43 (C.A.A.F. 1997)(citing United States v. Booker, 5
M.J. 238
(C.M.A. 1977)); United States v. Kelly, 45 M.J. 259, 263-65
(C.A.A.F.
1996) (plurality opinion citing United States v. Mack, 9 M.J.
300
(C.M.A. 1980), and Cox, C.J., concurring in part and in the result)).

In
a sentencing proceeding, the prosecution may introduce certain
personnel
records of the accused, including records of punishment under Article
15.R.C.M. 1001(b)(2).The defense may object to the admission of a
record on the grounds that it is inaccurate, incomplete, not made or
maintained
in accord with departmental regulations, or that the record otherwise
contains
inadmissible evidence.Id.The accused
also may object on the grounds
that he or she was not provided with the opportunity to confer with
counsel
before deciding whether to demand trial by court-martial.SeeEdwards, 46
M.J. at 43.

During
sentencing, the prosecution also may introduce prior convictions of the
accused, including convictions by summary court-martial.R.C.M. 1001(b)(3).Among the objections that may be made to the
admissibility of a summary court-martial conviction, the accused may
cite the
absence of proof of review under Article 64, 10 U.S.C. § 864 (2000).R.C.M. 1001(b)(3)(B).In addition, the accused may object to the
admissibility of a summary court-martial conviction on the grounds that
the
accused was not provided with the opportunity to consult with counsel
prior to
deciding whether to object to the proceeding.SeeKelly, 45 M.J. at 264.

At
a special court-martial where he was
represented by counsel, Appellant was convicted of unauthorized
absence,
pursuant to his pleas.During the
sentencing proceeding, trial counsel introduced a document from
Appellant’s
personnel records entitled “Record of Conviction by Court-Martial
(1070).”The document contained the
following entries:
(1) the name of the organization conducting the summary court-martial;
(2) the
date of trial and a block with a check mark noting that the trial was
conducted
by summary court-martial; (3) a summary of the charges and
specifications,
including unauthorized absence, willful disobedience of an order,
assault, and
communicating a threat; (4) a statement that findings of guilty were
returned
as to three of the four charged offenses; (5) a block with a check mark
noting
that Appellant waived representation by counsel; (6) a summary of the
sentence;
(7) the date of the convening authority’s action; (8) a signature block
containing a signature of a noncommissioned officer with the title of
administrative chief; and (9) Appellant’s name.The check block designed to reflect notification of the
disbursing
officer was not completed.

Defense
counsel did not object to the
admissibility of the document.Counsel
objected to consideration by the military judge of that portion of the
document
describing the offenses that did not involve absence on the grounds
that such
information was irrelevant, and that it was more prejudicial than
probative.Counsel expressly stated that
the defense objection did not preclude consideration of the summary
court-martial conviction for unauthorized absence.The military judge overruled the defense
objection.The ruling by the military
judge on Appellant’s specific objection is not at issue in the present
appeal.

The
Court of Criminal Appeals affirmed,
relying on Appellant’s failure to object to the admissibility of the
document.Kahmann,
58 M.J. at 668.The court expressly stated that “we are not attempting to
abrogate, by
this decision, the mandate of Booker/Mack that a servicemember
must be afforded an opportunity to consult with counsel prior to
accepting nonjudicial punishment (NJP) or
a summary court-martial in
order for that disciplinary action to be admissible in aggravation at a
summary
court-martial.”Id.Likewise, in
this appeal, the Government does
not seek to deny servicemembers the right
to consult
with counsel in such circumstances.

II.DISCUSSION

The
granted issue raises two questions
concerning the admissibility of the record of Appellant’s summary
court-martial
conviction despite the absence of an objection at trial.First, whether the record is inadmissible
because it does not state expressly that Appellant was provided with
the
opportunity to consult with counsel prior to electing to proceed with a
summary
court-martial.Second, whether the
record is inadmissible because it does not state expressly that the
required
legal review was completed under Article 64.

Under
Military Rules of Evidence 103
[hereinafter M.R.E.], a ruling admitting evidence will not be
overturned on
appeal unless there was an appropriate objection at trial, subject to
consideration of plain error.In a case
decided prior to the adoption of M.R.E. 103 that involved the
admissibility of
a prior summary court-martial conviction, our Court indicated that the
military
judge had an affirmative duty to ensure that the accused had been
afforded an
opportunity to consult with counsel and had affirmatively waived the
right to
object to trial by summary court-martial.United States
v. Booker, 5 M.J. 238,
243-44 (C.M.A. 1977).

In
subsequent cases, we have suggested that
M.R.E. 103 governs the admissibility of records reflecting summary
court-martial convictions and nonjudicial
punishment,
see, e.g., United States v. Dyke, 16 M.J. 426, 427
(C.M.A. 1983),
although we have not expressly based a decision on that position.We do so today.A
document that summarizes a summary
court-martial conviction or nonjudicial
punishment
does not differ in significant respects from other records that are
subject to
M.R.E. 103.Recognition of the
importance of the opportunity to consult with counsel prior to an
election
concerning a nonjudicial punishment
proceeding or a
summary court-martial, seeKelly, 45 M.J. at 264, does
not
require differential treatment with respect to plain error analysis.Accordingly, we hold that admissibility of
the record from such a proceeding is governed by the objection and
plain error
provisions of M.R.E. 103.

We
analyze a claim of plain error under the
three-part standard of United States v. Powell, 49 M.J. 460,
464-65
(C.A.A.F. 1998); that is, (1) whether there was an error; (2) if so,
whether
the error was plain or obvious; and (3) if the error was plain or
obvious
error, whether it was prejudicial.See
Article 59(a), UCMJ, 10 U.S.C. § 859(a)(2000).

Appellant
contends that the military judge
erred in admitting the record of summary court-martial conviction
because the
document did not state on its face that Appellant had been afforded an
opportunity to consult with counsel prior to electing to proceed with
the
summary court-martial.The placement of
such a statement on the document may be desirable as a matter of
policy,
particularly in view of the fact that an objection to the document
requires the
Government to prove that the accused was afforded the opportunity to
consult
with counsel, and the Government must do so without compelling the
accused to
provide such evidence.SeeUnited States v. Cowles,
16 M.J. 467 (C.M.A. 1983).The admissibility of such a record, however,
does not depend upon the placement of such a statement on the face of
the
document, and the prosecution may prove that Appellant was afforded the
opportunity to consult with counsel through other evidence.SeeMack, 9
M.J. at 322-23.Absent objection
by the defense, the prosecution is under no obligation to introduce
such
evidence.

Appellant
cites our opinion in Dyke,
16 M.J. at 427, for the proposition that plain error may be predicated
upon
irregularities in the document.In
support of this argument, Appellant relies on section 4008 of the
Marine Corps
Individual Records Administration Manual (IRAM) as the basis for
suggesting
various irregularities in the document at issue.

Absent
timely objection, irregularities do
not provide a basis for relief without a showing that any errors were
plain or
obvious, or that they were prejudicial.As we noted in Dyke, a document that has “illegible
signatures or
where some blanks remain unfilled” would usually not provide the basis
for
relief in the absence of a trial objection.16 M.J. at 427.In Dyke, the errors were apparent on the face of the
document.The document contained four
places where the signature of Appellant or his commander should have
appeared,
and each was blank.We concluded that
the document “was so incomplete on its face that the judge should have
excluded
it on his own motion.”Id.

Appellant
has identified three regulatory
errors in the document at issue in the present case: (1) failure to
include
language regarding consultation with counsel prior to the summary
court-martial; (2) failure to check the block indicating that the
disbursing
officer has been informed of the sentence; and (3) failure to include
either
the signature of the Appellant’s commanding officer or an indication
that the
person signing the form has done so by direction of the commanding
officer.Each of these matters is
distinguishable from the significant facial defects of the document at
issue in
Dyke.

As
noted by Appellant, section 4008 of the
IRAM summarizes our case law regarding admissibility of the record of a
summary
court-martial conviction, and provides a model paragraph that “may” be
inserted
on the reverse side of the document to reflect consultation with
counsel.This provision, however, does not
establish a
mandatory requirement.Use of the term “may” in this context reflects non-binding
guidance.The absence of the model
paragraph on the
face of the document introduced at Appellant’s trial does not establish
a plain
or obvious error, particularly in light of our case law, which does not
require
such a notation on the document.SeeMack, 9 M.J. at 322-23.

With
respect to the fact that the document
was signed by a noncommissioned officer rather than an officer acting
“by
direction” of the commander as provided in the IRAM, we note that no
such
requirement appears on the face of the document introduced at
Appellant’s
trial.The document at issue contains a
signature by a noncommissioned officer with the title of administrative
chief.It is not unusual in the armed
forces for
noncommissioned officers in administrative positions to sign official
documents
that summarize actions taken by officers.To the extent that there was a failure to follow an
administrative
requirement in the personnel manual, the defect was not manifest on the
face of
the document.While there may be some
records in which the absence of an officer’s signature might constitute
a plain
or obvious error, this is not such a case.There is one obvious error on the face of the document -- the
absence of
a check mark in the block indicating notification to the disbursing
officer.In the present case, however,
Appellant does not claim any prejudice that might have resulted from
the
absence of the check mark, such as an error in computing or applying
the adjudged
forfeiture of pay.Under these
circumstances, any error by the military judge in admitting the
document
without inquiring into the missing check mark did not constitute
prejudicial
plain error.

Similar
considerations apply to Appellant’s
contention that the military judge erred by admitting the record of a
summary
court-martial conviction when the document did not contain a notation
that
review had been completed under Article 64.See R.C.M. 1001(b)(3)(B).Appellant has not identified any statutory,
regulatory, or judicial requirement to place such a notation on a
document
summarizing a conviction by summary court-martial.If the defense objects to the admissibility
of a document summarizing a summary court-martial conviction on the
grounds
that there is no evidence of review under Article 64, the burden is on
the
prosecution to demonstrate that such review has been completed.The opportunity to object is sufficient to
protect Appellant’s rights under R.C.M. 1001(b)(3)(B),
and the military judge is not required to inquire on his or her own
motion
whether such review has been completed.

III.CONCLUSION

The
decision of the United States
Navy-Marine Corps Court of Criminal Appeals is affirmed.

CRAWFORD,
Chief Judge (concurring in the
result):

While
I agree with the majority that there
was a waiver in this case, I write separately because I believe this
Court has
a judicial obligation to follow Supreme Court precedent regarding the
right to
counsel, absent a provision in the Manual for Courts-Martial,
United States
(2002 ed.) or military necessity for doing otherwise.The Court is not an ombudsman which
can decide the result it wants, and then pick and
choose from the Superior Court’s precedents to suit that result.Nor may it act as a policy maker or
legislator.By arbitrarily deciding when
and whether to follow the constitutional precedents of the Supreme
Court, this
Court not only undermines the legitimacy of its adjudication, but also
undermines public confidence in the stability and predictability of
military
justice.

When
the Supreme Court interprets the Bill
of Rights, this Court is bound by those rulings and their rationales
unless
they can be distinguished.By the same
token, when the Supreme Court specifically holds that the right to
counsel does
not apply, this Court is not at liberty to reject that decision.As to the right to counsel, this Court
applied the rationale of Argersinger
v.
Hamlin, 407 U.S. 25 (1972), in holding that, absent representation
by
counsel, or waiver of the right to counsel, a summary-courts martial
would not
be admissible during the sentencing procedures or for any other purpose.United States v. Alderman,
22 C.M.A. 298, 46 C.M.R. 298 (1973). However, when the
Supreme Court was specifically faced with that issue, it held that the
right to
counsel did not apply at summary courts-martial.Middendorf v. Henry, 425 U.S. 25 (1976).This Court is
not at liberty to disregard
that holding.

It
is important to describe in detail this
Court’s history of selectively applying Supreme Court precedent as to
the right
to counsel.First, in Alderman,
this Court adopted the Supreme Court rationale in Argersinger,
22 C.M.A. at 299-300, 46 C.M.R. at 299-300.Although Argersinger
was a civilian habeas action and did not address summary
courts-martial,
this Court, in Alderman, extrapolated from Argersinger
a requirement for a waiver of counsel or representation by counsel at
summary
courts-martial for its results to be admissible at a subsequent
court-martial.Four years later, the
Supreme Court in Middendorf held
that Argersinger did not apply to
summary
courts-martial.Nevertheless, the very
next year this Court refused to follow the Supreme Court and rejected
the Middendorf holding and
rationale in United States
v. Booker, 5 M.J. 238 (C.M.A. 1977)(Booker
I).In so doing, this Court in Booker
I
implicitly created a right to counsel at a
summary
courts-martial by holding

that absent waiver of counsel or
representation by counsel:

(1)
the escalator clause would not apply to
summary
courts-martial;

(2)
a summary courts-martial conviction was not
admissible
for sentencing;

In
United States v. Booker, 5 M.J. 246 (C.M.A. 1978)(Booker II),
the
Court reconsidered Booker I and held that Article 15s and
summary
courts-martial were not limited to military-type offenses.In United States v. Mack, 9 M.J. 300,
311 (C.M.A. 1980), the Court revisited the Booker I rationale
and, in a
1-1-1 opinion, sought to justify its rejection of Middendorf
by applying the escalator clause based on Baldasar
v. Illinois, 446 U.S. 222 (1980).When the Supreme Court later removed the Baldasar
underpinnings in Nichols v. United States, 511 U.S. 738 (1994),
this
Court was once again faced with the opportunity to apply current
Supreme Court
precedent with respect to the right to counsel.Yet, it refused to do so in Kelly, 45 M.J. at 264, and
continued
this Court’s selective application of constitutional precedents of the
Supreme
Court.

Now,
once again this Court has the opportunity to correct its prior
misapplication
of Supreme Court decisions.Sadly,
however, not only does the majority continue this Court’s selective
application
of constitutional precedents established by the Supreme Court, but now
the
majority also seeks to justify its position by creating a new
“important stage”
analysis.It is unclear what this
“important stage” analysis means to practitioners.In the future it might be compared with the
“critical stage” analysis which has been employed by the Supreme Court
in
numerous cases.Neither the “critical
stage” analysis nor its possible new military analog was mentioned or
cited in
the Middendorf case.At the time of adopting the Uniform Code of
Military Justice, Congress knew the import of various decisions and the
rights
available to the accused at a summary court-martial, and the duties and
responsibilities of the summary court-martial officer.And at the time of Middendorf,
the Supreme Court knew the consequences that could result from a
summary
court-martial and the potential for greater punishment if the accused
opted to
object to the summary court-martial.Yet, the Supreme Court still held that the right to counsel does
not
apply at the summary court-martial.

The
accused’s option to obtain greater rights
at a
proceeding is not unique to the military, but is also present in both
the state
and federal systems.For example, the
defendant who appears before a United States federal magistrate judge
in a
misdemeanor case has the right to be tried before a United States
district
court judge, including a jury panel.But
there is no requirement that because this option is available, there
must be an
advisement of the right to consult with counsel before opting for a
trial
before a district court.In the
magistrate court versus district court arena, the defendant may opt for
a
district court judge or a jury subjecting him or her to a potential
greater
punishment.Even so, it was not the
potential greater punishment, but rather the punishment that may be
imposed at
the magistrate judge court level or misdemeanor court level on which
the
Supreme Court relied in determining when an individual is entitled to
counsel.

In
addition to the legal reasons already
mentioned, there are practical reasons for why we should reexamine Booker
I
and Mack.The majority undermines
truth in sentencing by denying the sentencing authority a true picture
of the
Appellant’s record.The military employs
very comprehensive sentencing procedures which allow the defense to
introduce
extensive evidence in extenuation and mitigation, as well as grant the
accused
expansive allocution rights.The
Government should likewise be able to present a full picture and not be
undercut by this Court’s refusal to apply Supreme Court decisions.

Furthermore,
our forces are deployed
worldwide fighting the war on terrorism, and as a result, judge
advocates are
fully engaged not only in the military justice arena, but also in
operational
law, legal assistance, and numerous other complex legal fields, at
camps,
bases, and fleets serving by their side.The number of lawyers available is limited.Many of these are in resident training, or
serving in non-legal billets, and thus unavailable for varying periods
of time
to discharge legal duties.54 M.J. CXXXII, at CXLV.By continuing implicitly to impose on the services by judicial
decree a
right to counsel prior to accepting Article 15s and summary
courts-martial,
this Court usurps the legislative and executive powers and does what
both
Congress and the President have elected not to do: further burden
commanders and
senior legal officers in their resolution of operational matters.As the Supreme Court stated in Orloff v. Willoughby, 345 U.S.
83, 93-94 (1953):

[J]udges are not
given the task of running the Army....Orderly government requires that the judiciary be as scrupulous
not to
interfere with legitimate Army matters as the Army must be scrupulous
not to
interfere in judicial matters.

For
these reasons, I must respectfully
decline to join the majority opinion.